[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Proposed Rules]
[Pages 31875-31879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15501]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 2
RIN 1076-AD50
Appeals From Administrative Actions
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs is proposing to amend its
regulations on appeals. We are proposing this amendment as part of the
President's National Performance Review regulatory reform initiative.
The proposal will enhance its usability by clarifying the language.
DATES: Comments must be received on or before September 19, 1996.
ADDRESSES: Mail comments to Deborah Maddox, Director of the Office of
Tribal Services, Bureau of Indian Affairs, 1849 C Street, NW, MS 4603-
MIB, Washington, D.C. 20240. Comments may be hand delivered to the same
address from 9:00 a.m. to 4:00 p.m. Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Deborah Maddox, Office of Tribal
Services at 202-208-3463.
SUPPLEMENTARY INFORMATION: The authority to issue rules and regulations
is vested in the Secretary of the Interior by 5 U.S.C. Sec. 301 and
sections 463 and 465 of the Revised Statutes, 25 U.S.C. Secs. 2 and 9.
The proposed rule has been written to facilitate its use by the general
public, tribes, and individual Indians affected by the rule. No
substantive revisions are proposed in this rule.
Public Participation Statement
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the
``addresses'' section of this document.
Executive Order 12778
The Department has certified to the Office of Management and Budget
(OMB) that these proposed regulations meet the applicable standards
provided in sections 2(a) and 2(b)(2) of Executive Order 12778.
Executive Order 12866
This proposed rule is not a significant regulatory action under
Executive Order 12866 and has not been reviewed by the Office of
Management and Budget.
Regulatory Flexibility Act
This proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Executive Order 12630
The Department has determined that this proposed rule does not have
``significant takings'' implications. The proposed rule does not
pertain to ``taking'' of private property interests, nor does it impact
private property.
Executive Order 12612
The Department has determined that this proposed rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
under the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary author of this document is Kimberly Toyekoyah, Bureau
of Indian Affairs, Department of the Interior.
List of Subjects in 25 CFR Part 2
Indians-law, Indians--administrative practice and procedure,
Indians--administrative appeals.
For the reasons given in the preamble, part 2 of title 25, chapter
I of the Code of Federal Regulations is proposed to be revised as set
forth below.
[[Page 31876]]
PART 2--APPEALS FROM ADMINISTRATIVE ACTIONS
Sec.
2.1 Information collection.
2.2 Definitions.
2.3 Applicability.
2.4 Who will decide my appeal?
2.5 What can I do if the appeal causes delays and financial losses?
2.6 When is an administrative decision final?
2.7 How will I know an administrative decision has been made?
2.8 What may I do if an official fails to act?
2.9 How do I appeal an administrative decision?
2.10 What documents must I file other than a notice of appeal?
2.11 If someone else files an appeal that affects my interest, may
I respond to the appeal?
2.12 How do I serve appeal documents?
2.13 How do I file an appeal document?
2.14 Who is responsible for keeping record addresses up to date?
2.15 How are periods of time computed?
2.16 May the time period for filing or serving a document be
extended?
2.17 Can an appeal be dismissed before it is reviewed?
2.18 Can appeals be consolidated?
2.19 How do Area Directors and Education Line Officers render
decisions?
2.20 Can the Assistant Secretary--Indian Affairs render a decision
after I have filed an appeal with the Interior Board of Indian
Appeals?
2.21 What information may the reviewing official consider?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.
Sec. 2.1 Information collection.
In accordance with Office of Management and Budget regulations in 5
CFR 1320.4, approval of information collections contained in this
regulation is not required.
Sec. 2.2 Definitions.
Administrative decision means a decision or action made by an
official of the Bureau of Indian Affairs.
Appeal means a written request for review of an action or the
inaction of an official of the Bureau of Indian Affairs that is claimed
to adversely affect the interested party making the request.
Appellant means any interested party who files an appeal under this
part.
Commissioner of Indian Affairs means the Commissioner of Indian
Affairs or the Deputy Commissioner of Indian Affairs.
Interested party means any person whose interests could be
adversely affected by a decision in an appeal.
Legal holiday means a Federal holiday as designated by the
President or Congress of the United States.
Must means a mandatory or imperative act or requirement.
Notice of appeal means the written document sent to the official
designated in this part, indicating that a decision is being appealed
(see Sec. 2.9).
Person includes any Indian or non-Indian individual, corporation,
tribe or other organization.
Statement of reasons means a written document submitted by the
appellant explaining why the decision being appealed is in error (see
Sec. 2.10).
Sec. 2.3 Applicability.
(a) Except as provided in paragraph (b) of this section, this part
applies to all appeals from decisions made by officials of the Bureau
of Indian Affairs by persons who may be adversely affected by these
decisions.
(b) This part does not apply if any other regulation or Federal
statute provides a different administrative appeal procedure applicable
to a specific type of decision.
Sec. 2.4 Who will decide my appeal?
(a) An Area Director, if the subject of appeal is a decision by a
person under the authority of that Area Director.
(b) An Area Director, an Education Line Officer, a President of a
Post-Secondary School, or the Director, Office of Indian Education
Programs if the appeal is from a decision of an Office of Indian
Education programs official under his/her jurisdiction.
(c) The Assistant Secretary--Indian Affairs under the provisions of
Sec. 2.20.
(d) The Commissioner of Indian Affairs under the provisions of
Sec. 2.20(c).
(e) The Interior Board of Indian Appeals, under the provisions of
43 CFR part 4, subpart D, if the appeal is from a decision made by an
Area Director or the Commissioner of Indian Affairs.
Sec. 2.5 What can I do if the appeal causes delays and financial
losses?
(a) If you believe that you may suffer a measurable and substantial
financial loss as a direct result of the delay caused by an appeal
filed by someone else, you may request that the official before whom
the appeal is pending require the appellant to post a reasonable bond
adequate to protect against that financial loss.
(b) If you request a bond, you are responsible for proving the
likelihood that you may suffer a measurable and substantial financial
loss as a direct result of the delay caused by the appeal.
(c) The official before whom an appeal is pending may require the
posting of a bond on his or her own initiative, if the official
determines that a bond is necessary to protect the financial interests
of an Indian or Indian tribe.
(d) The official before whom an appeal is pending must give notice
of the decision that a bond be posted or the decision denying a request
that a bond be posted under Sec. 2.7.
Sec. 2.6 When is an administrative decision final?
(a) No decision, which at the time of its rendition is subject to
appeal to a superior authority in the Department, will be considered
final so as to constitute Departmental action subject to judicial
review under 5 U.S.C. 704, unless when an appeal is filed, the official
to whom the appeal is made determines that public safety, protection of
trust resources, or other public exigency requires that the decision be
made effective immediately.
(b) Decisions made by officials of the Bureau of Indian Affairs
will be effective when the time for filing a notice of appeal has
expired and no notice of appeal has been filed.
(c) Decisions made by the Assistant Secretary--Indian Affairs will
be final for the Department and effective immediately unless the
Assistant Secretary--Indian Affairs provides otherwise in the decision.
Sec. 2.7 How will I know an administrative decision has been made?
(a) The official making a decision must give the appellant and all
known interested parties written notice of the decision by certified or
registered mail, return receipt requested. These receipts will become a
permanent part of the record.
(b) Failure of the official making a decision to give written
notice will not affect the validity of the decision or action. However,
the time to file a notice of appeal regarding such a decision will not
begin to run until notice has been given in accordance with paragraph
(c) of this section.
(c) All written decisions, except decisions which are final for the
Department under Sec. 2.6(c), must include a statement that the
decision may be appealed under this part, identify the official to whom
it may be appealed and indicate the appeal procedures, including the
30-day time limit for filing a notice of appeal.
Sec. 2.8 What may I do if an official fails to act?
(a) If your interests are adversely affected, or your ability to
protect your interests is impeded by the failure of an official to act
on a request to the official, you can make the official's inaction the
subject of appeal. You must:
(1) Request in writing that the official take the action originally
asked of the official;
[[Page 31877]]
(2) Describe the interest adversely affected by the official's
inaction, including a description of the loss, impairment or impediment
of the interest caused by the official's inaction; and
(3) State that, unless the official involved either takes action on
the merits of the written request within 10 days of receipt of the
request by the official, or establishes a date by which action will be
taken, an appeal will be filed in accordance with this part.
(b) The official receiving a request as specified in paragraph (a)
of this section must either:
(1) Make a decision on the merits of the initial request within 10
days from receipt of the request for a decision; or
(2) Establish a reasonable later date by which the decision will be
made, not to exceed 60 days from the date of request.
(c) If an official establishes a date by which a requested decision
will be made, this date will be the date by which failure to make a
decision will be appealable under this part.
(d) If the official, within the 10-day period specified in
paragraph (a) of this section, fails to make a decision on the merits
of the initial request or to establish a later date by which a decision
will be made, the official's inaction will be appealable to the next
official in the process established in this part.
Sec. 2.9 How do I appeal an administrative decision?
(a) You must file a written notice of appeal in the office of the
official whose decision is being appealed. You must also send a copy of
the notice of appeal to the official who will decide the appeal and to
all known interested parties. The notice of appeal must be filed in the
office of the official whose decision is being appealed within 30 days
of your receipt of the notice of administrative action described in
Sec. 2.7.
(1) A notice of appeal that is filed by mail is considered filed on
the date that it is postmarked. You are responsible for proving that
your notice of appeal is timely filed.
(2) No extension of time will be granted for filing a notice of
appeal. Notices of appeal not filed in the specified time will not be
considered, and the decision involved will be considered final for the
Department and effective in accordance with Sec. 2.6(a).
(b) If you are an Indian or Indian tribe and not represented by
counsel, you may request assistance in preparing your appeal from the
official who issued the decision. If you request assistance, the
official who issued the decision appealed must give you appropriate
assistance in preparing the appeal.
(c) Your notice of appeal must:
(1) Include your name, address, and phone number.
(2) Be clearly labeled or titled with the words ``NOTICE OF
APPEAL.''
(3) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
(4) Certify that copies of the notice of appeal have been served on
interested parties, as prescribed in Sec. 2.12(a).
(d) Your notice of appeal should:
(1) Have on the face of any envelope in which the notice is mailed
or delivered, in addition to the address, the clearly visible words
``NOTICE OF APPEAL.''
(2) If possible, attach either a copy of the notice of the
administrative decision received under Sec. 2.7, or when an official
has failed to make a decision or take any action, attach a copy of your
request for a decision or action under Sec. 2.8 with a written
statement that the official failed to make a decision or take any
action or to establish a date by which a decision would be made upon
the request.
Sec. 2.10 What documents must I file other than a notice of appeal?
(a) You must file a statement of reasons in every appeal, and it
must be accompanied by or otherwise incorporate all supporting
documents.
(b) The statement of reasons may be included in or filed with the
notice of appeal.
(c) If the statement of reasons is not filed with the notice of
appeal, you must file a separate statement of reasons in the office of
the official whose decision is being appealed within 30 days after the
notice of appeal was filed in that office.
(d) The statement of reasons whether filed with the notice of
appeal or filed separately should:
(1) Be clearly labeled ``STATEMENT OF REASONS''.
(2) Have on the face of any envelope in which the statement of
reasons is mailed or delivered, in addition to the address, the clearly
visible words ``STATEMENT OF REASONS''.
Sec. 2.11 If someone else files an appeal that affects my interest,
may I respond to the appeal?
Yes. You are an interested party.
(a) Any interested party may file a written answer responding to
the appellant's notice of appeal and statement of reasons.
(b) Any interested party may file a written answer describing the
affected interest and a response to the appeal. This answer may be
submitted in any appropriate manner. The written answer may be
accompanied by or otherwise incorporate supporting documents.
(c) The written answer must be filed within 30 days after the
statement of reasons is received.
(d) The written answer and any supporting documents must be filed
in the office of the official before whom the appeal is pending as
specified in Sec. 2.13.
(e) The written answer should:
(1) Be clearly labeled or titled with the words ``ANSWER OF
INTERESTED PARTY'';
(2) Have on the face of any envelope in which the answer is mailed
or delivered, in addition to the address, the clearly visible words
``ANSWER OF INTERESTED PARTY''; and
(3) Contain a statement of the decision being appealed that is
sufficient to permit identification of the decision.
Sec. 2.12 How do I serve appeal documents?
(a) All persons filing documents in an appeal must serve copies of
those documents on all other interested parties known to the person
making the filing.
(1) The documents must be served on all other interested parties,
either by mail or personal delivery, at the time the document is filed.
(2) A written statement must be filed certifying that the document
has been served on each interested party. The statement should show the
document involved, the name and address of the party served, and the
date of service.
(b) If an appeal is filed with the Interior Board of Indian
Appeals, a copy of the notice of appeal must also be sent to the
Assistant Secretary--Indian Affairs: The notice of appeal sent to the
Interior Board of Indian Appeals must certify that a copy has been sent
to the Assistant Secretary--Indian Affairs.
(c) If the appellant is an Indian or Indian tribe not represented
by counsel, and has requested assistance in preparing the appeal from
the official who issued the decision, the official will, in the manner
prescribed in this section, personally or by mail serve a copy of all
appeal documents on the official who will decide the appeal and on each
interested party known to the serving official.
(d) Service of any document under this part must be by personal
delivery or by mail to the record address as specified in Sec. 2.14.
Service on a tribe will be to the principal or designated tribal
official or to the governing body.
(e) In all cases where a party is represented by an attorney in an
appeal, service of any document on the attorney is service on the party
represented. Where a party is represented by more
[[Page 31878]]
than one attorney, service on any one attorney is sufficient. The
certificate of service on an attorney will include the name of the
party whom the attorney represents and indicate that service was made
on the attorney representing that party.
(f) When an official deciding an appeal determines that there has
not been service of a document affecting a person's interest, the
official will either serve the document on the person or direct the
appropriate legal counsel to serve the document on the person and allow
the person an opportunity to respond.
Sec. 2.13 How do I file an appeal document?
(a) An appeal document is properly filed with an official of the
Bureau of Indian Affairs:
(1) By personal delivery during regular business hours to the
person designated to receive mail in the immediate office of the
official; or
(2) By mail to the facility officially designated for receipt of
mail addressed to the official. The document is considered filed by
mail on the date that it is postmarked.
(b) Bureau of Indian Affairs offices receiving a misdirected appeal
document will forward the document to the proper office promptly. If a
person delivers an appeal document to the wrong office or mails an
appeal document to an incorrect address, no extension of time should be
allowed because of the time necessary for a Bureau office to redirect
the document to the correct address.
(c) Notwithstanding any other provision of this section, an
official deciding an appeal will allow late filing of a misdirected
document, including a notice of appeal, where the official finds that
the misdirection is the fault of the government.
Sec. 2.14 Who is responsible for keeping record addresses up to date?
(a) Every interested party who files a document in connection with
an appeal must, when filing the document, indicate his/her address.
(1) Any change of address must be promptly reported to the official
with whom the previous address was filed.
(2) The most current address on file under this subsection will be
deemed the proper address for all purposes under this part.
(b) The successors in interest of a party must also promptly inform
the official specified in paragraph (a) of this section of their
interest in the appeal and their address.
(c) An appellant or interested party failing to file an address or
change of address as specified in this section may not object to lack
of notice or service attributable to his/her failure to indicate a new
address.
Sec. 2.15 How are periods of time computed?
In computing any period of time prescribed or allowed in this part,
calendar days will be used. Computation will not include the day on
which a decision being appealed was made, service or notice was
received, a document was filed, or other event occurred causing time to
begin to run. Computation will include the last day of the period,
unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period runs until the end of the next day which is not a Saturday,
a Sunday, or a legal holiday.
Sec. 2.16 May the time for filing or serving a document be extended?
An official to whom an appeal is made may, upon a showing of good
cause by a party and with notice to all other parties, extend the
period for filing or serving any document; provided, however, that no
extension will be granted for filing a notice of appeal under Sec. 2.9
or serve by itself to extend any period specified by law or regulation
other than in this part.
Sec. 2.17 Can an appeal be dismissed before it is reviewed?
(a) An appeal under this part will be dismissed if the notice of
appeal is not filed within the time specified in Sec. 2.9(a).
(b) An appeal under this part may be subject to summary dismissal
for the following causes:
(1) If after the appellant is given an opportunity to amend them,
the appeal documents do not state the reasons why the appellant
believes the decision being appealed is in error, or the reasons for
the appeal are not otherwise evident in the documents; or
(2) If the appellant has been required to post a bond and fails to
do so.
Sec. 2.18 Can appeals be consolidated?
Separate proceedings pending before one official under this part
and involving common questions of law or fact may be consolidated by
the official conducting the proceedings, under a motion by any party or
on the initiative of the official.
Sec. 2.19 How do Area Directors or Education Line Officers render
decisions?
(a) Area Directors, Education Line Officers and the Director,
Office of Indian Education Programs must render written decisions in
all cases appealed to them within 60 days after all time for pleadings
(including all extensions granted) has expired. The decision must
include a statement that the decision may be appealed and indicate the
appeal procedures, including the 30-day time limit for filing a notice
of appeal.
(b) The official deciding the appeal must send a copy of the
decision to the appellant and each known interested party by certified
or registered mail, return receipt requested.
These receipts will become a permanent part of the record.
Sec. 2.20 Can the Assistant Secretary--Indian Affairs render a
decision after I have filed an appeal with the Interior Board of Indian
Appeals?
(a) When a decision is appealed to the Interior Board of Indian
Appeals, a copy of the notice of appeal must be sent to the Assistant
Secretary--Indian Affairs.
(b) The notice of appeal sent to the Interior Board of Indian
Appeals must certify that a copy has been sent to the Assistant
Secretary--Indian Affairs.
(c) Under 43 CFR 4.332(b), a notice of appeal to the Board of
Indian Appeals will not be effective until 20 days after receipt by the
Board. During this time, the Assistant Secretary--Indian Affairs will
have authority to issue a decision in the appeal or assign
responsibility to issue a decision in the appeal to the Commissioner of
Indian Affairs. The Assistant Secretary--Indian Affairs will not
consider petitions to exercise this authority.
(1) If the Assistant Secretary--Indian Affairs decides to issue a
decision in the appeal or to assign responsibility to the Commissioner
of Indian Affairs, he/she will notify the Board of Indian Appeals, the
deciding official, the appellant, and interested parties within 15 days
of his/her receipt of a copy of the notice of appeal.
(2) Upon receipt of the notification, the Board of Indian Appeals
will transfer the appeal to the Assistant Secretary--Indian Affairs.
The decision must be signed by the Assistant Secretary--Indian Affairs
or the Commissioner of Indian Affairs within 60 days after all time for
pleadings (including all extensions granted) has expired.
(3) If the decision is signed by the Assistant Secretary--Indian
Affairs, it will be final for the Department and effective immediately
unless the Assistant Secretary--Indian Affairs provides otherwise in
the decision. Except as otherwise provided in Sec. 2.20(g), if the
decision is signed by the Commissioner of Indian Affairs, it may be
appealed to the Board of Indian Appeals under the provisions of 43 CFR
part 4, subpart D.
(d) The official deciding the appeal must send a copy of the
decision to the
[[Page 31879]]
appellant and each known interested party by certified or registered
mail, return receipt requested. These receipts will become a permanent
part of the record.
(e) If the Assistant Secretary--Indian Affairs or the Commissioner
of Indian Affairs does not make a decision within 60 days after all
time for pleadings (including all extensions granted) has expired, any
party may move the Board of Indian Appeals to assume jurisdiction
subject to 43 CFR 4.337(b). A motion for Board decision under this
section will invest the Board with jurisdiction as of the date the
motion is received by the Board.
(f) When the Board of Indian Appeals, in accordance with 43 CFR
4.337(b), refers an appeal containing one or more discretionary issues
to the Assistant Secretary--Indian Affairs for further consideration,
the Assistant Secretary--Indian Affairs will take action on the appeal
consistent with the procedures in this section.
(g) The Assistant Secretary--Indian Affairs will render a written
decision in an appeal from a decision of the Director, Office of Indian
Education Programs within 60 days after all time for pleadings
(including extensions granted) has expired. A copy of the decision must
be sent to the appellant and each known interested party by certified
or registered mail, return receipt requested. These receipts will
become a permanent part of the record. The decision will be final for
the Department and effective immediately unless the Assistant
Secretary--Indian Affairs provides otherwise in the decision.
Sec. 2.21 What information may the reviewing official consider?
(a) When a decision has been appealed, any information available to
the reviewing official may be used in reaching a decision whether part
of the record or not.
(b) When the official deciding an appeal believes it appropriate to
consider documents or information not contained in the record on
appeal, the official must notify all interested parties of the
information and give them not less than 10 days to comment on the
information before the appeal is decided. The deciding official will
include in the record copies of documents or a description of the
information used in arriving at the decision. Except where disclosure
of the actual documents used may be prohibited by law, copies of the
information will be made available to the parties upon request and at
their expense.
Dated: May 31, 1996.
Ada E Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-15501 Filed 6-20-96; 8:45 am]
BILLING CODE 4310-02-P
